TĀMATI KRUGER ON BEHALF OF TŪHOE TE URU TAUMATUA TRUST v PAKI NIKORA ON BEHALF OF TE KAUNIHERA KAUMĀTUA O TŪHOE [2023] NZCA 179

TĀMATI KRUGER ON BEHALF OF TŪHOE TE URU TAUMATUA TRUST v PAKI NIKORA ON BEHALFOF TE KAUNIHERA KAUMĀTUA O TŪHOE [2023] NZCA 179 [18 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA57/2022[2023] NZCA 179BETWEEN TĀMATI KRUGER ON BEHALF OFTŪHOE TE URU TAUMATUA TRUSTAppellantAND PAKI NIKORA ON BEHALF OF TEKAUNIHERA KAUMĀTUA O TŪHOERespondentHearing: 5 April 2023Court: Miller, Gilbert and Goddard JJCounsel: M G Colson KC and K O M Fitzgibbon for AppellantM S Smith and P T Harman for RespondentJudgment: 18 May 2023 at 10.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The orders made by the Māori Land Court in relation to elections oftrustees of the Tūhoe Trust are set aside.C The trustees of the Tūhoe Trust must pay the respondent his actual andreasonable legal costs and disbursements in connection with the appeal tothis Court out of the assets of the Tūhoe Trust. If the parties are unableto agree on the amount of costs and disbursements payable, that will bedetermined by the Registrar of this Court.D Any outstanding issues relating to costs in the courts below are to bedetermined by those courts, in light of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Table of contentsPara noIntroduction [1]Background [12]The Trust [13]The assets held by the Trust [24]Mr Nikora's applications [28]Relevant provisions of Te Ture Whenua Māori Act [32]Decisions of the Māori Land Court and Māori Appellate Court [58]The decisions in Moke [58]The Māori Land Court decision in this case [64]The Māori Appellate Court decision in this case [68]Issues on appeal [76]Is the General land held by the Trust "General land owned by Māori"? [78]Submissions on appeal [79]Discussion [81]Is the Trust constituted in respect of general land owned by Māori? [107]Submissions on appeal [108]Discussion [113]Māori freehold land held by the trustees [125]Costs [130]Result [133]Introduction[1] The Tūhoe Trust (the Trust) is a discretionary trust for the benefit of presentand future Tūhoe iwi members. The Trust is also referred to as Tūhoe — Te UruTaumatua. Mr Kruger is one of the current trustees of the Trust.[2] The Trust is the post-settlement governance entity (PSGE) established by NgāiTūhoe to receive redress from the Crown for breaches of Te Tiriti o Waitangi/TheTreaty of Waitangi (te Tiriti/the Treaty). The assets held by the Trust include a numberof parcels of freehold land transferred to the trustees under the Tūhoe ClaimsSettlement Act 2014.[3] Mr Nikora, on behalf Te Kaunihera Kaumātua o Tūhoe (Te Kaunihera), appliedto the Māori Land Court for various orders in relation to the appointment of trusteesof the Trust and the administration of the Trust. The trustees of the Trust did not acceptthat the Māori Land Court had jurisdiction to entertain the claim, and did not appearbefore the Māori Land Court.[4] The Māori Land Court held that the Trust fell within its jurisdiction. It orderedthe Trust to undertake fresh elections for two of its trustees.1 Applying the decision ofthe Māori Appellate Court in Moke v Trustees of Ngāti Tarāwhai Iwi Trust, the MāoriLand Court considered that it had jurisdiction over the administration of the Trustbecause it is a Trust that holds General land owned by Māori.2[5] The trustees appealed to the Māori Appellate Court, arguing that the MāoriLand Court did not have jurisdiction in relation to the administration of the Trust.The trustees submitted that Moke was wrongly decided. The Māori Appellate Courtupheld Moke, and dismissed the trustees' appeal.3 The trustees now appeal to thisCourt.[6] The sole issue before us is whether the Māori Land Court has jurisdiction tohear claims in relation to the administration of the Trust. That turns on whether theTrust is a "trust constituted in respect of any General land owned by Māori" for thepurposes of s 236 of Te Ture Whenua Māori Act 1993.1 Nikora (on behalf of Te Kaunihera Kaumātua o Tūhoe) v Trustees of Tūhoe — Te Uru Taumatua(2021) 252 Waiariki MB 157 (252 WAR 157) [Māori Land Court judgment].2 Moke v Trustees of Ngāti Tarāwhai Iwi Trust [2019] Māori Appellate Court MB 265 (2019APPEAL 265), [2019] NZAR 1465.3 Kruger (on behalf of Tūhoe Te Uru Taumatua Trust) v Nikora (on behalf of Te KauniheraKaumātua o Tūhoe) [2021] Māori Appellate Court MB 444 (2021 APPEAL 444) [Māori AppellateCourt judgment].[7] Before the Māori Appellate Court it was assumed that the assets held by theTrust included General land owned by Māori. However we asked the parties toaddress that issue before us. We have concluded that the General land held by theTrust is not General land owned by Māori for the purposes of Te Ture Whenua MāoriAct, because the estate in fee simple in that land is not beneficially owned by theTrust's current discretionary beneficiaries.[8] We have also concluded that the Trust was not "constituted in respect of" theGeneral land that it owns. At the time the Trust was established, it was contemplatedthat it would acquire land as a result of a Treaty settlement. But the Trust wasestablished for very broad purposes, including advancing the mana motuhake of Tūhoeand holding a wide range of assets for the long-term benefit of current and futureTūhoe iwi members. It was not established to hold one or more identified parcels ofland on trust for the benefit of the beneficial owners of that land.[9] Nor was the Trust constituted in respect of the small number of parcels ofMāori freehold land that the trustees hold on separate trusts on a transitional basis,while new ownership arrangements are put in place. The Trust was not established tohold these parcels of land. More fundamentally, these lands are not held on the sametrusts and do not form part of the assets of the Trust: so even if the Māori Land Courthad jurisdiction in respect of the trusts of those lands, that would not mean it hadjurisdiction over the Trust, or over the trustees in relation to the administration of theTrust.[10] The appeal must therefore be allowed, and the orders made by the Māori LandCourt set aside.[11] Our reasons are set out in more detail below.Background[12] We begin by setting out in a little more detail the background against whichthe parties' dispute has arisen.The Trust[13] The Trust was established on 5 August 2011. The current version of itsTrust Deed is dated 13 December 2013 (Trust Deed). The recitals in the Trust Deedemphasise the principles of Tūhoetanga and mana motuhake for Tūhoe. They recordthat:G Tūhoe wishes to create the Tūhoe Trust to act as their Iwi authority andpost-settlement governance entity (that is transparent, accountable andrepresentative of the iwi) and for the Trustees to hold Property upon thetrusts and with the duties, powers and discretions set out in this Deed.[14] Clause 2.1 records that the trustees hold the Trust Fund upon the trusts andwith powers set out in the Trust Deed. Clause 2.3 provides that the trustees "shalldistribute the remaining balance of the Trust Fund to the Tūhoe Iwi Members on thelast day of the Perpetuity Period if the rule against perpetuities applies to the Trust atthat time."[15] The "Trust Fund" is defined to mean all property that is from time to time heldby the trustees on the trusts of the Trust Deed.[16] The "Tūhoe Iwi Members" are defined as "the individuals for the time being,who (a) by whakapapa (or by legal adoption) can claim descent from the eponymousancestors Tūhoe or Potiki or who are Whāngai and (b) are affiliated to any of theHapū".[17] Clause 3.1 provides that the purposes of the Trust are to "receive, hold, manageand administer the Trust Fund in trust for the present and future Tūhoe Iwi Members"in accordance with the Trust Deed. Those purposes include:(a) Leading and serving the cultural permanency and prosperity ofTūhoetanga by way of re-enacting te mana motuhake of Tūhoe.(b) The promotion and advancement of the social and economicdevelopment of Tūhoe including, without limiting the generality ofthis purpose, by the promotion of business, commercial or vocationaltraining or the enhancement of community facilities in a mannerappropriate to the particular needs of Tūhoe;(c) The maintenance and establishment of places of cultural or spiritualsignificance to Tūhoe and marae of Tūhoe, including restoring theconnection of Tūhoe with Te Urewera through the operation of theTe Urewera Board;(d) The promotion of tribal forums to hear and determine mattersaffecting Tūhoe and to advocate on their behalf;(e) Any other purpose that is considered by the Trustees from time to timeto be beneficial to Tūhoe and Tūhoe Iwi Members;(f) To achieve requital for raupatu and other claims from the Crown andto establish a new generation relationship between other iwi, theCrown and Tūhoe;(g) To address the effect that Crown breaches have had on the economic,social, cultural, and political well-being of Tūhoe;(h) To make distributions to Tūhoe Iwi Members.[18] The powers of the trustees set out in schedule 1 to the Trust Deed includerepresenting the collective interest of the iwi and being the legal representative of theiwi in relation to that collective interest; receiving, holding and managing Propertytransferred from the Crown to the Trust on behalf of the iwi in settlement of Treatyclaims; and acquiring, holding and disposing of Property.[19] Clause 3.5 provides that all land that is part of the Trust Fund and that issituated within the Tūhoe ahikāroa shall not be sold or otherwise disposed of by thetrustees.[20] The Trust is a discretionary trust. Clause 12 of the Trust Deed provides thatthe trustees may at any time, after meeting costs and expenses in connection with theTrust, pay or apply any or all of the income or capital of the Trust to or for the benefitof the Tūhoe Iwi Members or any group of Tūhoe Iwi Members in accordance withthe purposes of the Trust.[21] Section 19 of the Tūhoe Claims Settlement Act provides that limits on theduration of a trust in any rule of law, including s 16 of the Trusts Act 2019, do notrestrict the period during which the Trust may exist in law, or during which the trusteesmay hold or deal with property or income derived from that property. So the Trust isable to continue indefinitely, unlike most discretionary trusts. And, importantly forpresent purposes, the class of beneficiaries is open-ended: the Trust can, and on itsterms will, continue forever for the benefit of Tūhoe Iwi Members.[22] It follows that the trustees will never be required to distribute the balance ofthe Trust Fund to current beneficiaries under cl 2.3, as there is no relevant perpetuityperiod applicable to the Trust.[23] Clause 19 of the Trust Deed makes detailed provision for resolving complaintsand disputes about the operation of the Trust, which may be raised by any Tūhoe IwiMember. If the dispute is not otherwise resolved – for example, by mediation – thecomplaint or dispute must be referred to a Disputes Committee. The findings anddecision of the Disputes Committee are final and binding on the parties, including theTrust.The assets held by the Trust[24] At the time it was established in 2011 the Trust did not hold any land.[25] Tūhoe and the Crown reached agreement on settlement of Tūhoe's claims forbreaches of te Tiriti/the Treaty on 4 June 2013. That agreement was implemented bythe Tūhoe Claims Settlement Act, which came into force on 28 July 2014. Certainparcels of General land were vested in the trustees as cultural redress pursuant to thatAct: four central North Island forests and three other fee simple properties.4[26] We were advised by counsel that the majority of the value of the Trust Fund isrepresented by assets other than land.[27] We were also advised by counsel that the trustees have held a number of parcelsof Māori freehold land on a transitional basis. These parcels of land were previouslyheld by entities that were dissolved by the Tūhoe Claims Settlement Act. They havebeen held on trust by the trustees for the owners of each relevant parcel of land pending4 Tūhoe Claims Settlement Act 2014, ss 23–26 and Sch 2.the establishment of permanent ownership arrangements. All but two of these parcelsof land have now been transferred to other entities.Mr Nikora's applications[28] Mr Nikora is a kaumatua of Tūhoe, the chairman of Tauarau Marae ReservationTrust, and a board member of Te Kaunihera.[29] In 2018, and again in 2019, Mr Nikora raised concerns with the Trust about theconduct of the process followed for election of trustees. He considered that there hadbeen breaches of the Trust Deed in connection with the election process, and theappointment of Mr Kruger and Mr Patrick McGarvey as trustees. Mr Nikoraattempted to invoke the internal dispute resolution process set out in cl 19 of the TrustDeed, but the notices of dispute he sent to the Trust were not replied to or acted on.[30] In 2019 Mr Nikora, on behalf of Te Kaunihera, applied to the Māori Land Courtseeking orders for the removal of Mr Kruger and Mr McGarvey as trustees, and forfresh elections to be held in accordance with the Trust Deed.[31] The trustees considered that the Māori Land Court did not have jurisdiction toentertain these applications. They declined to participate in the proceedings beforethat Court, stating that the Trust was a private common law trust and was "surprised"to hear of the Māori Land Court's interest in it.Relevant provisions of Te Ture Whenua Māori Act[32] Because the decisions of the Māori Land Court and Māori Appellate Court turnon the interpretation of Te Ture Whenua Māori Act, it is helpful to set out the relevantprovisions before summarising those decisions.[33] The purpose of Te Ture Whenua Māori Act is set out in the Preamble:Nā te mea i riro nā te Tiriti o Waitangi i motuhake ai te noho a te iwi me teKarauna: ā, nā te mea e tika ana kia whakaūtia anō te wairua o te wā i riro atuai te kāwanatanga kia riro mai ai te mau tonu o te rangatiratanga e takoto neii roto i te Tiriti o Waitangi: ā, nā te mea e tika ana kia mārama ko te whenuahe taonga tuku iho e tino whakaaro nuitia ana e te iwi Māori, ā, nā tērā hewhakahau kia mau tonu taua whenua ki te iwi nōna, ki ō rātou whānau, hapūhoki, a, a ki te whakangungu i ngā wāhi tapu hei whakamāmā i te nohotanga,i te whakahaeretanga, i te whakamahitanga o taua whenua hei painga mō tehunga nōna, mō ō rātou whānau, hapū hoki: ā, nā te mea e tika ana kia tū tonuhe Kooti, ā, kia whakatakototia he tikanga hei āwhina i te iwi Māori kia taeaai ēnei kaupapa te whakatinana.Whereas the Treaty of Waitangi established the special relationship betweenthe Māori people and the Crown: And whereas it is desirable that the spirit ofthe exchange of kawanatanga for the protection of rangatiratanga embodied inthe Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognisethat land is a taonga tuku iho of special significance to Māori people and, forthat reason, to promote the retention of that land in the hands of its owners,their whānau, and their hapū, and to protect wahi tapu: and to facilitate theoccupation, development, and utilisation of that land for the benefit of itsowners, their whānau, and their hapū: And whereas it is desirable to maintaina court and to establish mechanisms to assist the Māori people to achieve theimplementation of these principles.[34] Section 2(1) provides that it is the intention of Parliament that the provisionsof the Act must be interpreted in a manner that best furthers the principles set out inthe Preamble. Section 2(2) records that it is the intention of Parliament that powers,duties and discretions conferred by the Act will be exercised, as far as possible, in amanner that facilitates and promotes the retention, use, development and control ofMāori Land as taonga tuku iho by Māori owners, their whānau, their hapū, and theirdescendants, and that protects wahi tapu.[35] For the purposes of Te Ture Whenua Māori Act, all land has one of six statuses:Māori customary land, Māori freehold land, General land owned by Māori, Generalland, Crown land, and Crown land reserved for Māori.5[36] Land that is held by Māori in accordance with tikanga Māori has the status ofMāori customary land.6 Where the beneficial ownership of land has been determinedby the Māori Land Court by freehold order, that land has the status of Māori freeholdland.7 The term "Māori land" is defined to mean Māori customary land and Māorifreehold land.85 Te Ture Whenua Māori Act 1993, s 129(1).6 Section 129(2)(a).7 Section 129(2)(b).8 Section 4.[37] Section 129(2)(c) provides that land (other than Māori freehold land) that hasbeen alienated from the Crown for a subsisting estate in fee simple, while that estateis beneficially owned by a Māori or by a group of persons of whom a majority areMāori, has the status of General land owned by Māori. The term "General land ownedby Māori" is defined in s 4 as "General land that is owned for a beneficial estate in feesimple by a Māori or by a group of persons of whom a majority are Māori".[38] Land (other than Māori freehold land and General land owned by Māori) thathas been alienated from the Crown for a subsisting estate in fee simple has the statusof General land.9[39] Part 1 of the Act provides for the continuation of the Māori Land Court.Section 17 sends out the general objectives of the Court:17 General objectives(1) In exercising its jurisdiction and powers under this Act, the primaryobjective of the court shall be to promote and assist in—(a) the retention of Māori land and General land owned by Māoriin the hands of the owners; and(b) the effective use, management, and development, by or onbehalf of the owners, of Māori land and General land ownedby Māori.(2) In applying subsection (1), the court shall seek to achieve thefollowing further objectives:(a) to ascertain and give effect to the wishes of the owners of anyland to which the proceedings relate:(b) to provide a means whereby the owners may be kept informedof any proposals relating to any land, and a forum in whichthe owners might discuss any such proposal:(c) to determine or facilitate the settlement of disputes and othermatters among the owners of any land:(d) to protect minority interests in any land against an oppressivemajority, and to protect majority interests in the land againstan unreasonable minority:(e) to ensure fairness in dealings with the owners of any land inmultiple ownership:9 Section 129(2)(d).(f) to promote practical solutions to problems arising in the useor management of any land.[40] The general jurisdiction of the Māori Land Court is, as one would expect,focussed on determining matters relating to Māori land and General land owned byMāori. Section 18 provides:18 General jurisdiction of court(1) In addition to any jurisdiction specifically conferred on the courtotherwise than by this section, the court shall have the followingjurisdiction:(a) to hear and determine any claim, whether at law or in equity,to the ownership or possession of Māori freehold land, or toany right, title, estate, or interest in any such land or in theproceeds of the alienation of any such right, title, estate, orinterest:(b) to determine the relative interests of the owners in common,whether at law or in equity, of any Māori freehold land:(ba) to determine whether a person is a member of a class ofpersons who are or will be beneficial owners of, orbeneficiaries of a trust whose trustees are owners of, land thatis or will become Māori freehold land:(c) to hear and determine any claim to recover damages fortrespass or any other injury to Māori freehold land:(d) to hear and determine any proceeding founded on contract oron tort where the debt, demand, or damage relates to Māorifreehold land:(e) to determine for the purposes of any proceedings in the courtor for any other purpose whether any specified person is aMāori or the descendant of a Māori:(f) to determine for the purposes of this Act whether any personis a member of any of the preferred classes of alieneesspecified in section 4:(g) to determine whether any land or interest in land to whichsection 8A or section 8HB of the Treaty of Waitangi Act 1975applies should, under section 338 of this Act, be set aside as areservation:(h) to determine for the purposes of any proceedings in the courtor for any other purpose whether any specified land is or isnot Māori customary land or Māori freehold land or Generalland owned by Māori or General land or Crown land:(i) to determine for the purposes of any proceedings in the courtor for any other purpose whether any specified land is or isnot held by any person in a fiduciary capacity, and, where itis, to make any appropriate vesting order.(2) Any proceedings commenced in the Māori Land Court may, if theJudge thinks fit, be removed for hearing into any other court ofcompetent jurisdiction.[41] The Act goes on to provide for the jurisdiction of the Court in relation tospecific matters such as actions for recovery of land, mortgages, relief againstforfeiture and other land-related matters.10 The Court has jurisdiction in respect ofcertain matters under the Māori Fisheries Act 200411 and under the Māori CommercialAquaculture Claims Settlement Act 2004.12 The Court also has jurisdiction to conductcertain inquiries.13 And it has a broad jurisdiction to advise on or determineappropriate representation of Māori groups.14[42] Part 2 is concerned with the Māori Appellate Court. Part 3 contains provisionsrelating to both the Māori Land Court and the Māori Appellate Court.[43] Part 4 of the Act is concerned with administration of estates of deceasedpersons (whether or not Māori) comprising in whole or in part any beneficial interestin Māori freehold land.15[44] Part 5 is concerned with the recording of ownership interests in Māori freeholdland.16[45] Part 6 provides for the status of land. As already mentioned, all land inNew Zealand has one of six statuses for the purposes of Te Ture Whenua Māori Act.17The Māori Land Court has jurisdiction to determine the particular status of any parcelof land.1810 Sections 19–26.11 Sections 26A–26N.12 Sections 26O–26ZB.13 Section 29.14 Section 30. See also ss 30A–30I.15 Section 100(1).16 Section 122.17 Section 129.18 Section 131(1).[46] Section 133(1) provides for the Māori Land Court to have jurisdiction to makea status order declaring that any land shall cease to be General land or General landowned by Māori, and shall become Māori freehold land. Section 133(2) provides thatthe Registrar-General of Land may apply to the Court for the exercise of its jurisdictionto declare that General land or General Land owned by Māori shall become Māorifreehold land in respect of any land that "is beneficially owned by more than 10Māori." The criteria for making such an order are set out in subsection (3):133 Change from General land or General land owned by Māori toMāori freehold land by status order(3) The court shall not make a status order under this section unless it issatisfied that—(a) the land is beneficially owned by 1 or more Māori; and(b) the owners have had adequate opportunity to consider theproposed change of status; and(c) either—(i) all the owners agree to the proposed change of status;or(ii) the land can be managed or utilised effectively asMāori freehold land and a sufficient proportion of theowners agree to the proposed change of status; and(d) it is desirable that the land become Māori freehold landhaving regard to the history of the land, and to the identity ofthe owners and their personal association with the land.[47] Part 12 is concerned with trusts. It confers exclusive jurisdiction on the MāoriLand Court to constitute five specific kinds of trust: putea trusts, whānau trusts, ahuwhenua trusts, whenua topu trusts and kai tiaki trusts.1919 Section 211(1).[48] Putea trusts may be established in respect of any interests in Māori land orGeneral land owned by Māori, or shares in a Māori incorporation,20 in thecircumstances prescribed in s 212(2):212 Putea trusts in respect of land interests(2) A putea trust may be constituted under this section where—(a) it is impractical, or otherwise undesirable, because of theminimal value of the interests or share, or because any personbeneficially entitled, or the present whereabouts of any suchperson, is unknown,—(i) to continue to pay the income derived from theinterests to the persons beneficially entitled to thatincome; or(ii) to allow further succession to the interests; or(b) all the persons beneficially entitled to the interests or sharesagree to the constitution of the trust.[49] The assets of a putea trust are held for Māori community purposes.21Section 218 provides for the income of such a trust to be applied for the benefit oradvancement of beneficiaries, or of the interests of hapū associated with landbelonging to the trust and the members of that hapū.22 A putea trust thus operates as aform of discretionary trust. But s 213 provides that notwithstanding the constitutionof a putea trust, the beneficial interests in the land or shares in respect of which theputea trust is constituted remain vested in the persons entitled to those interests whenthe trust was constituted.23[50] Sections 214 to 217 provide for constitution of other forms of trust by theMāori Land Court. For present purposes it is not necessary to discuss those provisionsin detail. It is sufficient to note that in each case the Act proceeds on the assumption20 Section 212(1).21 Section 212(6).22 Section 218(1).23 Section 213(1).that at the time the trust is established there will be identifiable owners of (vested)beneficial interests in the relevant land.24[51] Section 236 is at the heart of this appeal. It provides:236 Application of sections 237 to 245(1) Subject to subsection (2), sections 237 to 245 shall apply to thefollowing trusts:(a) every trust constituted under this Part:(b) every other trust constituted in respect of any Māori land:(c) every other trust constituted in respect of any General landowned by Māori.(2) Nothing in sections 237 to 245 applies to any trust created by section250(4).[52] Section 237(1) provides that in respect of any trust to which Part 12 applies theMāori Land Court has and may exercise all the same powers and authorities as theHigh Court has in respect of trusts generally (subject to any express provisions todifferent effect in Part 12). Section 237(2) provides that nothing in s 237(1) limits oraffects the jurisdiction of the High Court in relation to such trusts. So the Māori LandCourt and High Court have concurrent jurisdiction in respect of trusts to which s 237applies.[53] The provisions that are brought into play by s 236 are, in summary, as follows:(a) Section 238, which provides for the Court to make orders enforcing theobligations of trustees.25 Section 238 also provides that the Court mayrequire any trustee to file in the Court a written report, and to appearbefore the Court for questioning on the report, or on any matter relatingto the administration of the trust or the performance of his or her dutiesas a trustee.2624 See for example s 214(1); s 215(5), (7) and (8); s 216(3)(a), (7) and (8); and s 217(1), (4) and (10).25 Section 238(2).26 Section 238(1).(b) Section 239, which provides for the Court to make orders adding to orreducing the number of trustees or replacing one or more of thetrustees.27(c) Section 240, which provides for the Court to make an order for theremoval of a trustee in certain circumstances.28(d) Section 241, which provides for the Court to make an order terminatinga trust in respect of the whole or any part of the land or interest in landsubject to the trust "by making an order vesting that land or that part ofthat interest in land in the persons entitled to it in their respective shares,whether at law or in equity, or in such other persons as the beneficialowners may direct".29(e) Section 242, which provides for the Court to make orders that anymoney held in trust be paid to the person or persons beneficially entitledto it.30(f) Section 243, which provides for certain orders to be made in respect ofland acquired by trustees out of revenue from the operation of a trust.31(g) Section 244, which provides for the Court to make orders varying atrust.32(h) Section 245, which confers on the Court a power to make orders thatincome derived by a trust be held for charitable purposes.3327 Section 239(1).28 Section 240(1).29 Section 241(1).30 Section 242(1)31 Section 243(2).32 Section 244(2).33 Section 245(1).[54] The supervisory jurisdiction of the Māori Land Court in respect of trusts towhich s 236 applies is, generally speaking, broader and more intensive than thesupervisory jurisdiction of the High Court under the Trusts Act. For example, theTrusts Act does not contain any direct equivalent to the power in s 238(1) to require atrustee to file a written report on the administration of the trust, and be questioned onthat report. That power is considerably broader and more "hands on" than the powersof investigation conferred by ss 126 and 127 of the Trusts Act.[55] Similarly, the Māori Land Court has broader powers than the High Court inrelation to removal and appointment of trustees. The High Court may make an orderremoving a trustee only if certain criteria are met and it is difficult or impracticable todo so without the assistance of the Court.34 The High Court may make an orderappointing a new trustee whenever it is necessary or desirable to do so and (as withremoval) it is difficult or impracticable to do so without the assistance of the Court.35The requirement that it be difficult or impracticable to remove or appoint a trusteedoes not appear in the corresponding provisions of Te Ture Whenua Māori Act.36[56] The Trusts Act does not contain any direct parallel to s 242 of Te Ture WhenuaMāori Act, conferring a power to direct application of trust assets. And the power tovary a trust under s 244 of Te Ture Whenua Māori Act is broader than the powerconferred on the High Court by s 130 of the Trusts Act.[57] The issue raised by this appeal is whether the Māori Land Court can exercisethe broader and more intensive supervisory jurisdiction provided for in Part 12 ofTe Ture Whenua Māori Act in relation to the Trust. If so, that jurisdiction would beavailable in addition to the High Court's more narrowly expressed supervisoryjurisdiction under the Trusts Act (and in the exercise of its general equitablejurisdiction). If not, then any challenge to the administration of the Trust would needto be resolved under cl 19 of the Trust Deed or pursued in the High Court.34 Trusts Act 2019, s 112.35 Section 114(1).36 See Te Ture Whenua Māori Act, ss 239–240.Decisions of the Māori Land Court and Māori Appellate CourtThe decisions in Moke[58] It is convenient to begin by summarising the decision in Moke v Trustees ofNgāti Tarāwhai Iwi Trust, before turning to the decisions in the present case.[59] In Moke the applicant sought a review of aspects of the governance of theNgāti Tarāwhai Iwi Trust (NTI Trust). The NTI Trust was also a PSGE, established tohold assets for the benefit of Ngāti Tarāwhai.[60] The Māori Land Court convened a preliminary hearing on jurisdiction.Judge Coxhead gave an oral ruling that he did not have jurisdiction.37 The issue waswhether the NTI Trust came within s 236(1)(c) of the Act, as a "trust constituted inrespect of any General land owned by Māori". The Judge found that the constitutionof the NTI Trust was primarily for the holding and administration of settlement assetswhich included properties. The primary purpose of the NTI Trust, unlike most trustswhich come before the Māori Land Court, was to hold and administer settlement assetswhich included property, money or other types of assets. The Judge said:38I do not think it matters whether receiving properties is the primary purposeor secondary purpose of the [NTI Trust], the point being that I think it stretchesthe wording and the intention of s 236 to read it in a very wide way to applyto a trust that was constituted for settlement purposes and one of thosepurposes included receiving properties.[61] Ms Moke appealed to the Māori Appellate Court. The appeal was successful.That Court considered that neither the text nor the purpose of s 236 supported a narrowapproach to the jurisdiction of the Māori Land Court in respect of trusts holdingGeneral land owned by Māori. On an ordinary meaning, a trust holding even oneparcel of General land owned by Māori would be sufficient to trigger jurisdiction.3937 Moke v Trustees of Ngāti Tarāwhai Iwi Trust 197 Waiariki MB 141–217 (197 WAR 141–217) at158–217.38 At [41].39 Moke, above n 2, at [75].[62] It was common ground before the Māori Appellate Court that the NTI Trustheld some General land blocks.40 At first instance Judge Coxhead had proceeded onthe basis that those blocks of land were General land owned by Māori because themajority of the trustees were Māori. However as the Māori Appellate Court observed,the trustees were not the beneficial owners. The Māori Appellate Court proceeded onthe basis that "beneficial ownership in the land remains with theshareholder/beneficiaries."41 The beneficiaries of the NTI Trust were defined as"every person of Ngāti Tarāwhai Iwi descent."42 Thus, the Māori Appellate Court said,whether one looked to the trustees or the beneficiaries "it is clear that these parcels ofgeneral land are owned by a group of persons of whom a majority are Māori."43[63] The Māori Appellate Court noted that the jurisdiction of the Māori Land Courtis concurrent with that of the High Court. Under s 18(2) of Te Ture Whenua MāoriAct the Māori Land Court has a discretion to transfer a proceeding commenced in thatCourt to the High Court. If there are genuine issues as to the appropriate forum for aparticular application, the Māori Appellate Court said, this discretion provides a meansto consider them on a case by case basis.44The Māori Land Court decision in this case[64] Mr Nikora's application was heard by Judge Coxhead. It was heard at the sametime as a parallel application by Mr Buddy Nikora seeking the removal of all trusteesof the Trust, and the appointment of an administrator.[65] As already mentioned, the trustees did not participate in the hearing before theMāori Land Court.[66] On the question of jurisdiction, the Judge followed Moke. The trustees werethe registered proprietors of fee simple titles of a number of parcels of General land.So, the Judge said, the trustees hold General land on behalf of beneficial owners, the40 At [69].41 At [71].42 At [71].43 At [72].44 At [79].majority of whom are Māori.45 The Māori Land Court therefore had jurisdiction todeal with the matters before it on the basis that the Trust is a trust constituted in respectof General land owned by Māori for the purposes of s 236(1)(c) of Te Ture WhenuaMāori Act.46[67] The Judge then went on to deal with the applications before the Court.He found that there had been breaches of the Trust Deed.47 He dismissed theapplications by Mr Buddy Nikora for removal of all trustees and appointment of anadministrator.48 He declined to make the order sought by Mr Nikora removing MrKruger and Mr McGarvey as trustees.49 But he made orders under s 237 of Te TureWhenua Māori Act requiring fresh elections to be held within six months in respect oftheir positions as trustees.50The Māori Appellate Court decision in this case[68] The trustees appealed to the Māori Appellate Court, arguing that Moke waswrongly decided. The trustees submitted that both the text and the purpose of the Actrequire that holding land must be the primary reason for a trust's establishment befores 236 applies. The Māori Appellate Court did not accept that argument. It concurredwith the Moke analysis, and in particular the following principles which it identifiedas underpinning that decision:51(a) Consistent with the Court of Appeal's analysis in Grace v Grace, thereis a discernible statutory scheme that carefully identifies where thejurisdiction of the Māori Land Court is to be exclusive and non-exclusive.(b) Section 236(1)(c) expressly confirms that the Court has jurisdictionover trusts constituted in respect of General land owned by Māori.(c) The words "constituted in respect of" have wide import, and the word"constitute" in this context appears to be equivalent to "established".45 Māori Land Court judgment, above n 1, at [46].46 At [47].47 At [51]–[55] and [64].48 At [82]–[83].49 At [84].50 At [85].51 Māori Appellate Court judgment, above n 3, at [18] (footnotes omitted).(d) There is an absence in Part 12 of any clear limitation on the extent ofthe Court's jurisdiction with respect to a trust constituted in respect ofany General land owned by Māori.(e) There is nothing in Part 12 or the overall statutory scheme to concludethat there is a clear legislative purpose to limit the Court's jurisdictionwhen it comes to trusts that are post-settlement governance entities.[69] The Māori Appellate Court accepted the trustees' submission that s 236(1)(c)requires an assessment of the purpose of a trust. A trust must have been constituted orestablished in respect of General land owned by Māori for s 236(1)(c) to apply.That requires an assessment of the background to the trust's constitution, including itspurpose.52 However the Court did not accept that s 236(1)(c) requires that the primarypurpose of a trust must relate to land before the trust will fall within the scope of thatprovision, for the following reasons:53(a) First, the plain words of the provision do not expressly call for anassessment of the primary purpose of the trust.(b) Second, the broader scheme in Part 12 does not support such a narrowreading of s 236(1)(c). Those provisions, particularly ss 237-245, donot focus on land, and instead deal with matters such as theenforcement of trustee obligations, the appointment and removal oftrustees, and termination and variation of trusts. The focus is notlimited to land.(c) Third, the Act's clear focus on the retention of land undermines, ratherthan supports, the argument that the Court should assess the primarypurpose of a trust. The Preamble confirms that land is a taonga tukuiho to be retained in the hands of its owners. This strong statutorylanguage regarding the significance of land to Māori, together withthe statutory direction that the Act be interpreted in a manner that bestfurthers this principle, supports an approach that invokes the Court'sjurisdiction simply if land is owned by a Māori trust.[70] In the present case, the Trust had been created in order to hold real and personalproperty on the trusts established by the Trust Deed. Clause 3.5 provided that landheld by the Trust and situated within the Tūhoe ahikāroa could not be sold or otherwisedisposed of by the trustees. Those provisions illustrated that assessment of the purposefor which a trust is constituted based on some form of "primacy test" is not52 At [19].53 At [20] (emphasis in original).straightforward, and would unnecessarily strain the clear statutory words and clearstatutory scheme.54[71] The Court concluded that if a Māori trust owns land from inception, or is setup to hold land that will be transferred to it in the future, it is constituted in respect ofthat land. That is the case for PSGEs. They are constituted to receive and manageland, together with other assets. It is therefore a purpose of these entities to receiveand hold land. They are captured by s 236(1)(c).55[72] The Court acknowledged that "there may be some uncertainty in respect ofMāori trusts that are not established initially to hold land, but subsequently acquireit."56 But that was not the present case. The nature and extent of any such uncertaintywas difficult to assess in the abstract, and any uncertainty did not affect the statutoryinterpretation analysis in Moke.57[73] In addition to the reasons expressed in Moke, the Court identified two furtherreasons why PSGEs fall within s 236(1)(c). First, like s 236(1)(c), s 236(1)(b) alsouses the phrase "constituted in respect of". It captures trusts that are constituted inrespect of Māori land. If the Court adopted the Trust's "primacy of purpose" approachin respect of that subsection, only trusts the primary purpose of which is to hold Māoriland would be captured. Some trusts that hold Māori land could fall outside the Act.That result, the Court said, would clearly be contrary to the principles and objectivesof the Act. If the primary purpose test cannot be sustained in s 236(1)(b), it cannot besustained in s 236(1)(c).58[74] Second, the Court considered there is a discernible scheme in Part 12 that isdesigned to capture any trust that holds Māori land or General land owned by Māori,including trusts not constituted under Part 12. That scheme did not easily permit areading that would exclude some trusts that hold land with these statuses.5954 At [24].55 At [25].56 At [26].57 At [26].58 At [30].59 At [31].[75] Finally, the Court considered whether any inference could be drawn from thefact that since Moke was decided, Te Ture Whenua Māori Act had been amended bythe Te Ture Whenua Māori (Succession, Dispute Resolution, and Related Matters)Amendment Act 2020. That Amendment Act did not amend s 236 to either confirmor overturn Moke. The Court considered it would go too far to say that Parliamentendorsed the outcome in Moke because it passed an Amendment Act that did notcontradict it.60 However the Court observed that the Amendment Act, and theParliamentary process that preceded it, "evinced no policy concern with the MāoriLand Court's general jurisdiction over post-settlement governance entities."61If anything, the comments in the Departmental Report, the Committee report andHansard suggested an acknowledgement of (rather than concern with) the status quo.62But the Court took little from the Amendment Act. Rather, the Court relied onstatutory interpretation to support its conclusion that Moke was correctly decided.63Issues on appeal[76] The principal issue to be determined by this Court is whether the Trust fallswithin the jurisdiction of the Māori Land Court. It is convenient to address this issuein two stages:(a) Is the General land held by the Trust "General land owned by Māori"for the purposes of Te Ture Whenua Māori Act?(b) If so, is the Trust a trust constituted in respect of General land ownedby Māori for the purposes of s 236(1)(c) of Te Ture Whenua Māori Act?[77] Before this Court Mr Nikora sought to raise a further issue that he says arisesbecause a small number of parcels of Māori freehold land are held by the trustees ofthe Trust on a transitional basis, while new ownership arrangements are put in place.These parcels of land were not referred to in the courts below. Mr Nikora argues thatPart 12 of Te Ture Whenua Māori Act applies to the Trust because it holds these parcels60 At [42].61 At [43].62 At [43].63 At [44].of land, by virtue of s 236(1)(b). The trustees say that the Trust was not constituted inrespect of these parcels of Māori freehold land, so s 236(1)(b) does not apply.We address this further issue briefly at [125]–[129] below.Is the General land held by the Trust "General land owned by Māori"?[78] As already mentioned, in the courts below it was assumed that the land held bythe Trust qualifies as General land owned by Māori for the purposes of Te TureWhenua Māori Act. This Court invited the parties to address that question.Submissions on appeal[79] Mr Colson KC, who appeared for the trustees, submitted that the Trust is adiscretionary trust. No individual beneficiary or group of beneficiaries can be said tohave beneficial ownership of the trust property. So the land is not "owned for abeneficial estate" by Māori. A beneficial interest short of beneficial ownership is notenough. The Māori Land Court recently confirmed in McCaw Lewis Trustee (No 1)Ltd that a discretionary beneficial interest in property does not constitute ownershipfor the purpose of assessing whether land is General land owned by Māori.64[80] Mr Smith, who appeared for Mr Nikora, submitted that the relevant land isGeneral land owned by Māori for the purposes of Te Ture Whenua Māori Act.The land is held for the benefit of a group of persons all of whom are Māori.The nature of the trust is not relevant. Nor is whether any interest has vested in oneor more beneficiaries. The purpose of the legislation would be undermined byadopting a narrow approach to the application of Part 12 to trusts holding land for thebenefit of Māori. It is much easier and less expensive for beneficiaries to access theMāori Land Court than the High Court. The protections provided by Part 12 shouldbe available to beneficiaries under a trust of this kind that has received land as part ofa Treaty settlement, and holds that land for the benefit of the hapū and whanau of theiwi. The principles of Te Tiriti support adopting a broad approach to the concept ofland "owned" by Māori, to give effect to active protection and option principles andthe principle of redress.64 McCaw Lewis Trustee (No 1) Ltd (as trustee of the Tuala-Warren Family Trust) – Rakautatahi1B2B1A (2022) 97 Tākitimu MB 232 (97 TKT 232).Discussion[81] Is the General land held by the trustees on the trusts set out in the Trust Deed"owned for a beneficial estate in fee simple by a group of persons of whom amajority are Māori"?[82] The trustees are not the beneficial owners of the land held by the Trust.65 TeTure Whenua Māori Act expressly provides that the terms "beneficial estate" and"beneficial interest" do not include an estate or interest vested in any person by wayof trust, mortgage or charge.66 So the trustees are not the relevant owners for thepurpose of the definition of the term "General land owned by Māori". Rather, it isnecessary to consider the position of the beneficiaries under the Trust.[83] The beneficiaries (or the vast majority of them) are by definition Māori.Do they own the land that forms part of the Trust Fund for a beneficial estate in feesimple for the purposes of Te Ture Whenua Māori Act?[84] That is a question of statutory interpretation. Section 10(1) of the LegislationAct 2019 provides that the meaning of legislation must be ascertained from its textand in the light of its purpose and its context.[85] We begin with the text. The definition of the term "General land owned byMāori" uses technical terms drawn from property law and trust law. So a helpfulstarting point is to ask whether, reading the definition in light of the established legalmeaning of the technical terms it employs, the beneficiaries of the Trust can be said toown a beneficial estate in fee simple in the land.[86] It is common ground that the Trust is a discretionary trust. The beneficiariesare current and future Tūhoe iwi members. The Trust Deed does not provide for anyindividual member or group of members to hold a vested beneficial interest in theTrust Fund or in any asset forming part of that Trust Fund. In particular, the currentbeneficiaries of the Trust do not, individually or collectively, hold any vestedbeneficial interest in the land that forms part of the Trust Fund. As already mentioned,65 See Moke, above n 2, at [71]; and Māori Land Court judgment, above n 1, at [44]–[46].66 Te Ture Whenua Māori Act, s 4.no perpetuity period applies to the Trust: so there will never be a point in time at whichthe Trust Assets vest in specified beneficiaries entitled to a residual interest in thoseassets.[87] The orthodox understanding of the interest of a beneficiary of a discretionarytrust is summarised in Lewin on Trusts as follows:67The term "discretionary interest" is convenient to describe the interests of theobject of a discretionary trust. An object of a discretionary trust has noproprietary interest in the trust assets or capital and no right to a definable partof the trust income. In general, a discretionary trust has no one in whom thebeneficial interest in the trust property can be said to be vested because vestingis contingent upon the selection of an object from a nominated class. (footnotes omitted)[88] The beneficiaries of a discretionary trust have no interest in possession in theassets of the trust.68 It would not be open to the current beneficiaries at any given timeto terminate such a trust under s 121 of the Trusts Act, as they do not together hold allof the beneficial interest in the trust property.[89] The beneficiaries of a discretionary trust have the right to compel dueadministration of the trust, to bring claims for breach of trust, and to obtain certaintrust information and accounts.69 They have a sufficient interest to trace and recoverassets transferred by a trustee in breach of trust, and secure the return of those assetsto the trustees. But whether taken separately or together, these interests fall well shortof beneficial ownership of trust assets.[90] A reading of the text of the definition by reference to established principles oftrust law suggests that the discretionary beneficiaries of the Trust do not own abeneficial estate in fee simple in the land, and thus that the land is not General landowned by Māori.[91] We turn to the wider statutory context. Te Ture Whenua Māori Act appears toconsistently use technical legal terms in a manner consistent with their established67 Lynton Tucker, Nicholas Le Poidevin and James Brightwell Lewin on Trusts (20th ed, Sweet &Maxwell, London, 2020) at [1-061].68 See [1-062] and the cases there cited.69 See [1-061]; and Trusts Act, ss 50-55.technical meaning. That is unsurprising in a statute designed to sit alongside, andinteract with, other legislation governing interests in land including the Land TransferAct 2017, legislation governing trusts, and the principles of equity and common lawconcerning trusts. The statute is replete with references to estates and interests in land,trusts and trustees, vesting of land (or interests in land), leases (and terms relating toleases such as "tenancy at will" and "leasehold interest whether at law or in equity")and other legal terms.70 The legislature can be expected to have used these terms intheir technical sense to promote understanding and consistency across statutes dealingwith the same subject-matter. It would be surprising and unhelpful to use thesetechnical terms in a materially different sense from how they would normally beunderstood. It seems most unlikely that the legislature did so.[92] At various points the statute uses terms such as "beneficial owners" in amanner that is clearly intended to refer to persons holding vested beneficial estates orinterests in land. So for example s 133(3), set out at [46] above, provides for the statusof land to be changed where the land is beneficially owned by one or more Māori andthe owners have had adequate opportunity to consider the proposed change of status,and either all the owners agree or a sufficient proportion of the owners agree.This provision proceeds on the basis that the entire beneficial ownership of the land isheld by the beneficial owners for the time being. The provision would make no sensein the context of a discretionary trust with no vested beneficial interests.Section 18(1)(ba) expressly distinguishes between beneficial owners and beneficiariesof a trust whose trustees own land that is or will become Māori freehold land (that is,beneficiaries with interests falling short of beneficial ownership). Similarly, s 141expressly distinguishes between beneficial owners of land (in s 141(1)(b)(ii)) andbeneficiaries under a form of statutory discretionary trust (s 141(1)(b)(iii)).[93] The way in which Te Ture Whenua Māori Act uses technical legal termsprovides considerable contextual support for the view that the terms used in thedefinition of "General Land owned by Māori" are likely to have been used in theirestablished technical sense.70 See for example ss 2, 18, 20, 22A, 25, 76, 84, 100, 101, 107A, 108, 117, 118, 132, 134, 150A, 210and 220; and Parts 4, 11 and 12 more generally.[94] That approach to the defined term "General land owned by Māori" is also inour view consistent with the purposes of the Act. The Act is primarily concerned withMāori land: Māori customary land and Māori freehold land. Māori customary land iscollectively held by the relevant whanau or hapū. Māori freehold land is typically inmultiple ownership, with the owners being the customary owners at the time the landwas converted from customary title to a fee simple title by a freehold order made bythe Māori Land Court and/or their descendants.[95] There is also a great deal of General land owned by Māori that was formerlyMāori land, as a result of the regime described by this Court in Nicholas vCommissioner of Police:71[14] In 1968, [the land in issue] was subject to a status declaration of theMāori Land Court changing it from Māori land to European land (later tobecome known as general land). Such status declarations were routinely madeby the Registrar of the Māori Land Court pursuant to s 6 of the Māori AffairsAmendment Act 1967. Where the provisions were satisfied, a status changewas mandatory. No application was required for such status change and theowners were unlikely to know of it beforehand. Rather, the Amendment Actprovided that any Māori land owned by not more than four owners could ceaseto be Māori land simply by administrative action of the Registrar of therelevant Māori Land Court district. The Amendment Act is generally regardedas having triggered the major Māori land protests of the 1970s and the policyreversal that ultimately led to the enactment of Te Ture Whenua Māori Act1993. Had the Whakamārama land not lost its Māori land status, it would nothave been alienable without first being offered to members of the Pirirākauhapū.(Footnotes omitted)[96] Where Māori land has been converted into General land the beneficial ownersof the Māori land become the beneficial owners of the fee simple estate in that Generalland. Such land will generally have originated as Māori customary land, which mayor may not have been converted into Māori freehold land before being converted intoGeneral land. Before conversion that land will be held, or will in the past have beenheld, collectively by the members of the relevant whanau or hapū. So the same issuesof traditional connection to the land, and multiple ownership, can be expected to arisein relation to General land owned by Māori where this (typical) trajectory has beenfollowed.71 Nicholas v Commissioner of Police [2017] NZCA 473, [2018] NZAR 172.[97] But the same issues do not arise where land is held under an expressdiscretionary trust. The terms of the trust will specify one or more trustees, the powersof those trustees, the identity of the beneficiaries, and the circumstances in which thetrustees may apply trust property for the benefit of those beneficiaries. The trusteesare responsible for decisions about the occupation, development and utilisation of theland for the benefit of the beneficiaries. The discretionary beneficiaries do not havedecision-making powers or responsibilities in relation to the land. So the issues raisedby collective ownership and multiple ownership do not arise in relation to such land.Such land may or may not be land with which the beneficiaries have a customaryconnection: it may simply have been acquired as a family home in the city in whichthe family currently lives, using a family trust as a vehicle. Or as an investmentproperty by a family trust.[98] Where an express discretionary trust has been created with (majority) Māoribeneficiaries, and that trust has acquired General land, there is no reason to think thatretention of that land in the hands of the trustees as part of the trust's assets should bea priority, as contemplated by the Preamble and by s 17(1)(a). (If it is, the trust deedcan expressly provide for this, as the present Trust Deed does in respect of land withinthe Tūhoe ahikāroa but not other land.) Nor is there likely to be any need for the MāoriLand Court to bring to bear its special expertise concerning Māori land and collectiveor multiple ownership: other mechanisms exist, as outlined above, to secure theeffective use, management and development of such land.72 Thus there is no reasonto think that in such cases, the primary objective of the Court set out in s 17(1) isrelevant. And the objectives set out in s 17(2), which focus on ascertaining and givingeffect to the wishes of the owners of land, and facilitating discussions and resolvingdifferences between members, are not relevant or applicable in the context of expressdiscretionary trusts where the beneficiaries are not "owners" and do not have anydecision-making role in relation to dealings in trust assets.[99] That is not to say that the concerns to which the Act is addressed can neverarise in relation to General land held on a discretionary trust. But often they will bewholly absent, and in other cases they will be present in a much attenuated form. It is72 Compare Te Ture Whenua Māori Act, s 17(1)(b).not necessary for the Act to apply to land held in this way in order for its purpose tobe achieved. And in many cases it would be arbitrary and surprising if the Act wereto apply.[100] Consider for example the acquisition by a Māori investor of a commercialinvestment property, which the investor decides to hold in a discretionary family trustfor the benefit of themselves, their partner, their children and any future grandchildrenor remoter issue. The trustees are the investor, their partner and their accountant.There is no reason to promote the retention of this property in the hands of the trustees,if they consider that it is commercially desirable that it be sold. Its occupation,development and utilisation will be determined by the trustees for the long term benefitof current and future beneficiaries: those beneficiaries do not need to make decisionsabout such matters, and have no voice in those decisions. The trust will be subject tothe Trusts Act and the general law of equity. The High Court will have jurisdiction toconsider any issues that may arise in relation to the administration of the trust. It seemsto us that in these circumstances the primary objective of the Māori Land Court is notrelevant, the specialist expertise of that Court is not engaged, and there is noidentifiable rationale for that Court having the extensive powers of supervision of sucha trust contemplated by Part 12 of Te Ture Whenua Māori Act, in addition to the roleof the High Court with respect to such trusts. It seems to us that it would be surprisingif such a trust came within Part 12, in circumstances where an identical discretionarytrust established for investment purposes by a non-Māori investor would not.73[101] The peculiarity of that outcome is underscored once one appreciates that ifPart 12 could apply to a discretionary trust of this kind, its application would comeand go over time depending on the relative number of discretionary beneficiarieswho are Māori. Consider for example a scenario where a non-Māori investor with anon-Māori partner establishes a trust along the lines described above. They have twochildren. One of the children subsequently marries a Māori partner. If that couple has(say) four children, then on the birth of the fourth grandchild Part 12 would apply tothe trust. If the other child marries a non-Māori partner and they have a child, the trust73 Depending of course on whether any current partner, children, grandchildren or remoter issue areMāori: see for example the scenario described at [101].would again cease to be subject to Part 12. That result seems arbitrary andunsatisfactory.[102] If Part 12 applied to discretionary trusts of the kind described above, difficultissues about the jurisdiction of the Māori Land Court would also arise depending onwhether the trust held land from time to time. If the trusts in the scenarios above soldthe commercial property and replaced it with other more diversified investments, therewould be no reason for the Māori Land Court to have a broad supervisory role inrelation to the administration of the trust. But depending on how s 236 is read, eitherthat Court would continue to have that role because the trust was originally constitutedin respect of the commercial property (a result which lacks any apparent policyrationale) or that Court's jurisdiction would cease. Would it then revive if the trustacquired a different investment property? What if the investment property was inSydney? It would be odd if the application of Part 12 to a discretionary trust turnedon such matters.[103] Similar points can be made in relation to a discretionary family trustestablished to own a family home. Mr Smith accepted that there is no clear reasonwhy such a trust should be subject to the jurisdiction of the Māori Land Court simplybecause the family is Māori. We agree.[104] As Mr Smith submitted, the principles of te Tiriti/the Treaty are highly relevantwhen interpreting Te Ture Whenua Māori Act. Te Tiriti/the Treaty providesfoundational context for the Act, as the Preamble recognises, and provides criticalguidance on the Act's purpose. But we do not consider that those principles provideany real support for Mr Smith's argument that the term "General land owned byMāori" extends to land held under an express discretionary trust. The active protectionand option principles are not engaged in relation to such trusts, for the same reasonsthat the policy underpinning Te Ture Whenua Māori Act is not squarely engaged.Nor do we obtain any assistance from the redress principle, for two reasons. First, thevast majority of such trusts will not hold land provided by way of redress for breachesof te Tiriti/the Treaty. The existence of a modest number of discretionary trustsestablished for that purpose, including PSGEs, does not support the application of Part12 to all such trusts. Second, there is some force in the trustees' argument that theprinciple of effective redress must include respect for the decision-making autonomyof the iwi, hapū and whanau receiving that redress. Supervision of how that redress isadministered by the Māori Land Court is not self-evidently more consistent with theredress principle, seen in that light.[105] In summary, the policy considerations raised by Mr Smith do not provide anymaterial support for an interpretation of the definition of "General land owned byMāori" that departs from an orthodox legal reading of the text of that definition.Land is classified as "General land owned by Māori" if and only if the fee simpleestate in that land is beneficially owned by a Māori or a group of persons of whom amajority are Māori. Where General land is held on a discretionary trust, thediscretionary beneficiaries do not own a fee simple estate in that land. So that land isnot treated as General land owned by Māori for the purposes of Te Ture Whenua MāoriAct, even if a majority (or all) of the discretionary beneficiaries at any given time areMāori.[106] That conclusion is consistent with the view expressed by the Māori Land Courtin McCaw Lewis Trustee (No 1) Ltd that a discretionary beneficial interest in propertydoes not constitute ownership for the purpose of assessing whether land is Generalland owned by Māori.74 We need not express a view on whether residual ownershipunder an otherwise discretionary trust constitutes ownership for that purpose, as theissue does not arise in relation to the Trust: as explained above, the Trust is not subjectto perpetuity rules and will continue indefinitely. So there is not now, and never willbe, any class of contingently entitled residual beneficiaries.Is the Trust constituted in respect of general land owned by Māori?[107] In light of our answer to the first issue above, the second issue does not strictlyspeaking arise. However in deference to the decisions of the courts below, and thesubmissions of counsel, we will address it briefly.74 McCaw Lewis Trustee (No 1), above n 64, at [22].Submissions on appeal[108] Mr Colson submitted that the approach adopted by the courts below in thiscase, and by the Māori Appellate Court in Moke, was wrong. A trust is constituted inrespect of General land owned by Māori only where the primary or dominant reasonfor the trust's establishment, or the trust's primary or dominant purpose, is to holdGeneral land. That is not the case in respect of the Trust, which was established formuch broader purposes as set out in the Trust Deed. Holding land was contemplatedas a purpose of the Trust, but was not and is not a primary or dominant purpose of theTrust. The Trust owns land, but this is only a minor part of the Trust Fund, andownership of that land is incidental to the Trust's broader purposes.[109] The trustees consider that an expansive interpretation of the Māori LandCourt's jurisdiction over trusts to include PSGEs such as the Trust would beinappropriately paternalistic. The Trust, having settled with the Crown on behalf ofTūhoe, should have autonomy to use its trust assets as it sees fit within the scope of itsTrust Deed without oversight from the Māori Land Court. That would better reflectthe principle of tino rangatiratanga in the post-settlement context.75[110] Mr Smith submitted that the Māori Appellate Court's approach was correct.The Trust was established to receive redress pursuant to the Tūhoe Claims SettlementAct. As is common, that redress included land: return of various properties vested inthe trustees in fee simple, deferred selection rights to further fee simple properties, andrights of first refusal in respect of properties held by the Crown. The trustees nowhold legal ownership of parcels of General land. That was expressly contemplated bythe Trust Deed, which provides for the trustees to hold such land and – if that land iswithin the Tūhoe ahikāroa – to retain such land and not sell or otherwise dispose of it.The Trust's beneficiaries are by definition members of Tūhoe, and therefore Māori.They alone are entitled to the benefit of the land. So the land held by the Trust isGeneral land owned by Māori, and the Trust Deed envisaged and authorised ownershipof that land. It follows that the Trust was constituted in respect of that land. There isno good reason to read down the language of s 236: to do so would undermine the75 See for example Waitangi Tribunal Tino Rangatiratanga me te Kāwanatanga: The Report on Stage2 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2022) at 81.objectives set out in the Preamble and s 17 of Te Ture Whenua Māori Act, includingrecognising the special collective relationship that Māori have with land as a taongatuku iho, supporting the retention of land, and affirming rangatiratanga through theholding of land.[111] Mr Smith emphasised that the jurisdiction of the Māori Land Court exists inparallel to the jurisdiction of the High Court (s 237), and that where appropriate theMāori Land Court can remove proceedings into the High Court (s 18(2)). Having theoption of choosing to raise issues relating to the administration of the Trust in theMāori Land Court would enhance the rangatiratanga of members of Tūhoe in a mannerconsistent with Tiriti/Treaty principles of active protection and options. Underminingaccess to the Māori Land Court, which has relevant expertise and is more accessibleand more affordable, would undermine those Treaty principles and the policyobjectives of Te Ture Whenua Māori Act. It would also be inconsistent with the Treatyprinciple of effective redress, and with the corresponding requirement in art 8 ofUnited Nations Declaration on the Rights of Indigenous Peoples to provide effectiveredress in response to any action that has the effect of depriving indigenous peoples oftheir cultural values, or the aim or effect of dispossessing them of their lands, territoriesor resources.76[112] Mr Smith noted that s 236(1)(c) does not refer to the primary or dominantpurpose of a trust being ownership of general land. He submitted that there was nowarrant for reading in such a requirement. Moreover any such test would beproblematic to apply in practice, and would raise difficult issues about whether onefocused on the provisions of the relevant trust deed, or the quantity of land held by thetrust, or the relative value of the land and other assets held by the trust (in turn raisingdifficult issues about how those values would be assessed). He added that if such atest were to be adopted in relation to s 236(1)(c), it would presumably apply equallyto s 236(1)(b). But that would produce the problematic result, inconsistent with thepurpose of the legislation, that some trusts holding Māori freehold land or Māoricustomary land would fall outside the Act.76 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007), art 8.Discussion[113] It became common ground in the course of the hearing that a trust cannot bedescribed as "constituted in respect of" any General land owned by Māori merelybecause at some point in time the trust holds such land. If the test was simply whetherthe trust holds such land, it would have been a simple matter to say so. The intendedscope of s 236 is clearly narrower than that: it extends to the five specific kinds of trustthat the Māori Land Court may constitute for the purpose of holding and administeringland, and other trusts constituted in respect of Māori land or General land owned byMāori — implicitly, constituted by the owners of that land rather than by the Court.[114] It also became common ground that the time at which the s 236(1) test must beapplied is when the trust is first established, not at some subsequent time if and whena trust acquires a qualifying parcel of land. The broad approach adopted in Moke isdifficult to reconcile with the language of the relevant provisions, and in particular therequirement that the trust be constituted in respect of relevant land.[115] The five specific kinds of trust that the Māori Land Court has power toconstitute all take as their starting point a particular parcel of land, or interests in aparticular parcel of land. The Court constitutes a trust in respect of that land (or thoseinterests) in order to secure the administration of that land in a manner consistent withthe purposes of Te Ture Whenua Māori Act, in circumstances where difficulties wouldotherwise arise in relation to the administration of that specific land (or interests inthat land). None of the five types of trust that the Court can constitute is set up to holdland generally, or to acquire and hold land at some later date.[116] Consistent with the scheme of the Act in respect of those five types of trust, weconsider that the concept of constituting a trust in respect of land requires that the trustbe established in respect of one or more identified parcels of land, with a view toproviding for the ownership and administration of that land. Generally, this will occurwhere the current owners of that parcel of land agree to establish a trust to hold andadminister that land on their behalf.[117] The establishment of a trust to hold and administer assets generally, which mayinclude subsequently acquired parcels of land, is not in our view sufficiently closelylinked to the ownership and administration of one or more particular parcels of landfor the trust to be described as constituted in respect of any land. As a matter ofordinary language, it seems to us that the statement "this trust was constituted inrespect of Māori land/General land owned by Māori" invites the response "what wasthe land in respect of which it was constituted?". If that question cannot be answeredat the time the trust is established, then that trust is not as matter of ordinary languageconstituted in respect of any land.[118] Thus both the text and the immediate statutory context of s 236(1)(c) supporta focus on the time of establishment of the trust, and whether at that time a purpose ofestablishing the trust was to provide for the holding and administration of one or moreidentified parcels of General land owned by Māori.[119] We add that if a trust meets this test, it is irrelevant that it may also hold otherassets at the time it is established, or acquire other assets at a later date. We acceptMr Smith's criticisms of the "primary purpose" test contended for by the trustees.The Act does not contain any such requirement, and it would be difficult to apply inpractice.[120] We do not consider that a broader reading is required by the purpose of the Act,or by relevant Tiriti/Treaty principles. As illustrated by the competing submissionsmade by the parties in this case, those principles pull in different directions. They donot provide clear support for a reading that departs from the reading indicated by thetext and the statutory context.[121] We note that where Māori land is acquired by the trustees of a trust to whichPart 12 does not apply, Te Ture Whenua Māori Act will apply to that land in the handsof the trustees. Our approach to s 236 does not result in Māori land ceasing to besubject to Te Ture Whenua Māori Act if it is acquired by trustees for the benefit of oneor more Māori beneficial owners some time after the relevant trust was established: itsimply means that the Act will apply to the trustees as the legal owners of the land, butPart 12 will not apply to the administration of the trust. Relief in respect of theadministration of the trust will need to be sought in the High Court. That outcome isconsistent with the purpose of Te Ture Whenua Māori Act, as the nexus between sucha trust and the objectives of that Act is insufficiently close to engage the need forsupervision of the trust (as distinct from the land) by the Māori Land Court.[122] We agree with the Māori Appellate Court that no useful inferences can bedrawn from the amendments that were made to Te Ture Whenua Māori Act by Te TureWhenua Māori (Succession, Dispute Resolution, and Related Matters) Act.The silence of that Amendment Act in relation to Moke cannot be taken as anendorsement of that decision.[123] Some modest support for the trustees' argument is provided by the ManiapotoClaims Settlement Act 2022, s 23 of which provides:23 Limits on effect of Te Ture Whenua Māori Act 1993(1) Te Nehenehenui is not a trust constituted in respect of—(a) any Maori land for the purpose of section 236(1)(b) of Te TureWhenua Maori Act 1993; or(b) any General land owned by Māori for the purpose of section236(1)(c) of that Act.(2) In this section, Māori land and General land owned by Māori have themeanings given to those terms in section 4 of Te Ture Whenua MāoriAct 1993.[124] This provision tends to suggest that when Parliament has expressly turned itsattention to whether a PSGE should come within s 236 of Te Ture Whenua Māori Act,the policy factors emphasised by Mr Smith were not seen as sufficient to justify thatoutcome. But Treaty claim settlement legislation often reflects the particularcircumstances of the settling iwi, and the specific negotiations that led to thesettlement. Considerable caution is required before drawing wider inferencesconcerning other settlements and other PSGEs. We prefer to rest our decision on ouranalysis of Te Ture Whenua Māori Act and the application of that Act to the Trust,having regard to its terms and the Tūhoe Claims Settlement Act.Māori freehold land held by the trustees[125] For the sake of completeness, we record that the trustees advised this Courtthat the Tūhoe-Waikaremoana Māori Trust Board (Tūhoe Trust Board) was wound upas part of the Treaty settlement arrangements.77 The Tūhoe Trust Board acted astrustee for approximately 10 trusts that held Māori freehold land. The intention was,and remains, to replace the Tūhoe Trust Board with trustees associated with the land.That has occurred for eight of the trusts. It has not yet occurred for two of the trustsbecause of issues over the appropriate hapū/hapū māngai (representative), though thatremains the intention. Meanwhile, the trustees of the Trust are temporary trustee forthose two trusts.78[126] Mr Smith submitted that the fact that the Trust holds Māori freehold landconfirms that it is subject to Part 12 of Te Ture Whenua Māori Act, by virtue ofs 236(1)(b). Mr Colson says that holding this land was not a material purpose of theestablishment of the Trust: the Trust was not constituted in respect of this land.[127] We do not consider that this argument assists Mr Nikora, putting to one sidethe fact that it was not raised or considered in the courts below.[128] First, we accept Mr Colson's submission that it would be artificial to describethe Trust as constituted in respect of this land given the temporary role of the trusteesin holding this land. Holding these lands was not a material purpose for which theTrust was established.[129] Second, and more fundamentally, these lands do not form part of theTrust Fund, and are not held on the trusts set out in the Trust Deed. They are held bythe trustees on the pre-existing trusts that applied to these lands when held by theTūhoe Trust Board.79 So the trustees of the Trust are the trustees of this land, but it isa misnomer to describe the Trust as holding these lands. The same trustees holddifferent assets on different trusts. Even if the trusts in respect of these parcels ofMāori freehold land come within Part 12, an issue on which we are not in a positionto express any view, that would not mean that the Māori Land Court had jurisdictionover the trustees in respect of their appointment as trustees of the Trust, or in respect77 Tūhoe Claims Settlement Act, s 89.78 Sections 89–91.79 Section 91.of the administration of the Trust. That Court's jurisdiction would be confined to theseparate trusts relating to those parcels of Māori freehold land.Costs[130] Mr Smith submitted that regardless of the outcome of the appeal, this Courtshould direct that Mr Nikora's actual and reasonable legal costs and disbursementsshould be reimbursed by the trustees out of the assets of the Trust. The issue raised bythe appeal is an important one. The appeal will clarify the legal position for currentand future trustees, and for all beneficiaries of the Trust.[131] We agree.[132] We add that the need for Mr Nikora to take proceedings before the courtsarose because his attempts to invoke the dispute resolution regime provided for incl 19 of the Trust Deed were unsuccessful. If the trustees had established aDisputes Committee, as contemplated by cl 19, no court costs would have beenincurred by either party. In the absence of any response from the trustees as requiredby cl 19, it was reasonable for Mr Nikora to commence proceedings to seek resolutionof the issues he had raised on a number of occasions. And in light of Moke, it wasreasonable for him to commence those proceedings in the Māori Land Court.He should not be out of pocket as a result of seeking resolution of his concerns aboutthe administration of the Trust before the courts, in the circumstances of this case.Result[133] The appeal is allowed.[134] The orders made by the Māori Land Court in relation to elections of trusteesof the Trust are set aside.[135] The trustees of the Trust must pay Mr Nikora his actual and reasonable legalcosts and disbursements in connection with the appeal to this Court out of the assetsof the Trust. If the parties are unable to agree on the amount of costs anddisbursements payable, that will be determined by the Registrar of this Court.[136] Any outstanding issues relating to costs in the courts below are to bedetermined by those courts, in light of this judgment.Solicitors:Tompkins Wake, Rotorua for AppellantG E Morrell, Pukekohe for Respondent